Judge Upinder S. Kalra, Case Number: 20STCV42916, Date: 2023-10-02 Tentative Ruling

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1. An order granting summary judgment, or summary adjudication, as to all causes of action.

1. Summary Adjudication is GRANTED, as to the 1^st, 2^nd, and 5^th causes of action.

On November 6, 2020, Plaintiff Artecia Puckett (“Plaintiff”) filed a complaint against Defendant Kia Motors America, Inc. (“Defendant.”) The complaint alleged (1) Violation of Subdivision (D) of Civil Code § 1793.2, (2) Violation of Subdivision (B) of Civil Code § 1793.2, (3) Violation of Subdivision (A)(3) of Civil Code § 1793.2, (4) Breach of Express Written Warranty, (5) Breach of the Implied Warranty of Merchantability, and (6) Fraud by Omission. Plaintiff alleges that they purchased the Subject Vehicle that was manufactured and distributed by Defendant. With the purchase of the vehicle, Plaintiff received an express warranty. During that warranty period, the Subject Vehicle presented nonconformities and defects, which substantially impaired the use of the Vehicle.

On December 21, 2020, Defendant filed a Demurrer with a Motion to Strike, which was SUSTAINED, in part, with leave to amend.

On August 23, 2022, Plaintiff filed a Motion for Leave to File a First Amended Complaint, which was GRANTED, in part, and DENIED, in part.

On July 18, 2023, Defendant filed a Motion for Summary Judgment, or alternatively, Motion for Summary Adjudication. Plaintiff’s Opposition was filed on September 18, 2023. Defendant’s Reply was filed on September 26, 2023.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

Defendant moves for summary judgment on six causes of action. However, the third and fourth causes of action in the original complaint were previously sustained with leave to amend in March 2021. The Court granted 30 days to file an amended complaint. However, Plaintiff failed to do so within the time allowed. Defendant filed an Answer in March 2022, and Plaintiff later filed a Motion for Leave to File a First Amended Complaint in August 2022.

“If the demurrer was sustained as to only certain causes of action and the time to amend has expired, the case moves forward on the remaining causes of action. No motion to dismiss lies; defendant must answer or otherwise plead to the remaining causes of action.” (A. Demurrers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A.) Thus, because the 3^rd and 4^th causes of action – Violation of Subdivision (a)(3) of Civil Code § 1793.2 and Breach of Express Warranty, Civil Code §§ 1791.2(a) and 1794) – were previously sustained and Plaintiff failed to file an amended complaint within that time period, these causes of action are foreclosed.

The Court notes that in Plaintiff’s Separate Statement, a footnote indicates that the 3^rd and 4^th causes of action were inadvertently left on the Amended Complaint.

1. First and Second Cause of Action: Violation Civil Code § 1793.2(d) and Violation of Civil Code § 1793.2(b)

Defendant argues that the Song-Beverly Consumer Warranty causes of action fail because Plaintiff purchased a used vehicle. Specifically, a used car is not a motor vehicle under Song-Beverly. Defendant cites to Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209. There, the Court determined that the phrase “other motor vehicles sold with a manufacturer’s new car warranty” refers to cars sold with a full warranty, not to previously sold cars accompanied by some balance of the original warranty.” (Id. at 225.) Here, Defendants argue that Plaintiff purchased the vehicle, but no new warranties were provided. (UMF 1, 3-5.)

Plaintiff argues that since the California Supreme Court granted review of Rodriguez it is not binding authority and can be used to establish “the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, 20 Cal.Rptr. 321, 369 P.2d 937, to choose between sides of any such conflict.” (Rodriguez v. FCA US (Cal. 2022) 295 Cal.Rptr.3d 351.)

Because of the pending review, Plaintiff further argues that the Court should follow Jensen, Dagher, R & B Auto Center, and Leber, which all have held that “used cars purchased from a retail seller with the balance of their manufacturer’s warranties are protected under the SBA.” (Opp. 5: 8-10) The Jensen Court held that the “words of section 1793.22 are reasonably free from ambiguity and cars sold with a balance remaining on the manufacturer's new motor vehicle warranty are included within its definition of “new motor vehicle.” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 123.) The Court went on to further state that concluding that § 1793.22 includes cars with a remaining balance “is consistent with the Act’s purpose as a remedial measure.” (Id. at 126.) In Dagher, the Court indicated that when a retail seller is engaged in “the business of vehicle selling, the Act contemplates coverage.” (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 923.) Both R & B Auto Center and Leber confirm Jensen’s holding that a used vehicle sold with a manufacturer’s warranty qualifies under Song-Beverly.

Plaintiff also contends that Rodriguez reduces the protection of the SBA and arbitrarily defines new motor vehicle. (Opp. 11: 2- 13: 12.) Moreover, the legislative history indicates that Jensen is proper, as there have been two amendments to Civil Code § 1793.2 but did not modify the “statutory language interpreted by Jensen.” (Opp. 17: 3-4.)

Except as provided in paragraph (2), if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.

The SBA obligates a manufacturer or its representative to service or repair a new car to conform with applicable express warranties within a reasonable number of attempts. (Civ. Code, § 1793.2(d)(2).)¿If the manufacturer fails to do so, it must either replace the car or make restitution to the buyer. (Id.)

Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.

As indicated above, when a case is pending review with the Supreme Court and there is a split in appellate decisions, the lower courts are tasked with making a choice between the conflicting decisions. “Of course, the rule under discussion has no application where there is more than one appellate court decision, and such appellate decisions are in conflict. In such a situation, the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456.)

The Court finds Rodriguez more persuasive than Jensen. Rodriguez explicitly states that the issue is whether “the phrase “other motor vehicle sold with a manufacturer’s new car warranty” covers sales of previously owned vehicles with some balance remaining on the manufacturer’s express warranty.” (Rodriguez, supra, 77 Cal.App.5th at 214.) Here, the facts are directly on point with Rodriguez. Plaintiff purchased a used car with the remaining warranty balance, unlike in Jensen, where the plaintiff purchased a used car with a “full new car warranty.” (Id. at 223.) The Rodriguez court went on to definitively state that “the phrase “other motor vehicles sold with a manufacturer's new car warranty” refers to cars sold with a full warranty, not to previously sold cars accompanied by some balance of the original warranty.” (Id. at 225.)

Thus, based on Rodriguez, the Court finds that Defendant has sufficiently met its burden that the SBA does not cover Plaintiff’s vehicle as it was a used car. Once the burden shifts, Plaintiff must demonstrate that there is a triable issue of material fact. Here, the Court finds that Plaintiff has failed to do so. Plaintiff’s sole argument is that Jensen is properly decided and to reject Rodriguez. However, as indicated above, with a split in appellate decisions, the lower court makes the decision between the two. Thus, because the Court finds Rodriguez more on point for the current matter, Plaintiff has failed to present a triable issue of material fact as to the first and second causes of action.

Motion for Summary Adjudication is GRANTED, as to the 1^st and 2^nd Causes of Action.

2. Fifth Cause of Action: Breach of Implied Warranty of Merchantability – Civil Code §§ 1791.1, 1794, & 1795.5

Defendant argues that under Civil Code § 1975.5 and Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, only used car sellers can be held liable for the breach of a product’s implied warranty. Here, Defendant Kia America, Inc., does not distribute or sell used vehicle. (UMF 1.)

(a) “Implied warranty of merchantability” or “implied warranty that goods are merchantable” means that the consumer goods meet each of the following:

(4) Conform to the promises or affirmations of fact made on the container or label.

(a) Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.

Notwithstanding the provisions of subdivision (a) of Section 1791 defining consumer goods to mean “new” goods, the obligation of a distributor or retail seller of used consumer goods in a sale in which an express warranty is given shall be the same as that imposed on manufacturers under this chapter except:

(a) It shall be the obligation of the distributor or retail seller making express warranties with respect to used consumer goods (and not the original manufacturer, distributor, or retail seller making express warranties with respect to such goods when new) to maintain sufficient service and repair facilities within this state to carry out the terms of such express warranties.

(b) The provisions of Section 1793.5 shall not apply to the sale of used consumer goods sold in this state.

(c) The duration of the implied warranty of merchantability and where present the implied warranty of fitness with respect to used consumer goods sold in this state, where the sale is accompanied by an express warranty, shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable, but in no event shall such implied warranties have a duration of less than 30 days nor more than three months following the sale of used consumer goods to a retail buyer.

The Court finds that Defendant has met its burden of establishing that under Civil Code § 1795.5 and Nunez v. FCA US LLC, it cannot be held liable. In Nunez, the Court states that the Song-Beverly Act provides similar remedies (to those available when a manufacturer sells new consumer goods) “in the context of the sale of used goods, except that the manufacturer is generally off the hook.” (Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 399.) The Court in Nunez cited to Kiluk, which stated that “the assumption baked into section 1795.5 is that the manufacturer and the distributor/retailer are distinct entities. Where the manufacturer sells directly to the public, however, it takes on the role of a retailer.” (Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 340. In Kiluk, Mercedes-Benz partnered with a dealership to sell used vehicles directly to buyers. Here, there is no evidence presented that Defendant partnered with Kia of Carson to sell used goods.

Defendant argues that this cause of action fails because no viable Song-Beverly claim exists. Under Daugherty v. Am. Honda Motor Co., Inc., a Magnuson-Moss claim fails without a viable state claim. (Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 833, [“that failure to state a warranty claim under state law necessarily constituted a failure to state a claim under Magnuson–Moss.”].)

Plaintiff argues that Dagher v. Ford is instructive, and the Court of Appeal indicated that “although the plaintiff could not bring an SBA cause of action, that did not foreclose plaintiff’s Magnuson-Moss claims.” (Opp. 18: 23-25, citing Dagher v. Ford Motor Co., supra, 238 Cal.App.4th at 915.) Additionally, Plaintiff cites to Brilliant v. Tiffin Motor Homes, Inc. (N.D.Cal. 2010) 2010 WL 2721531 and Romo v. FFG Ins. Co. (C.D.Cal. 2005) 397 F.Supp.2d 1237, 1239. The Court notes that these are trial court and federal decisions, which are only used for persuasive value, not precedential value.

15 U.S.C.A. § 2310(d) concerns “Civil action by consumer for damages, etc.; jurisdiction; recovery of costs and expenses; cognizable claims.” It states the following:

(1) Subject to subsections (a)(3) and (e), a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief--

(A) in any court of competent jurisdiction in any State or the District of Columbia; or

(B) in an appropriate district court of the United States, subject to paragraph (3) of this subsection.

(2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate.

(3) No claim shall be cognizable in a suit brought under paragraph (1)(B) of this subsection--

(A) if the amount in controversy of any individual claim is less than the sum or value of $25;

(B) if the amount in controversy is less than the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims to be determined in this suit; or

The Court finds that Defendant misconstrues Daugherty which involved a demurrer. Here, plaintiff has alleged a state a warranty claim under state law. Moreover, the evidence is uncontroverted that claims were made while the express warranty period had not expired. Thus, under both Daugherty and Dagher, Plaintiff has presented evidence of a state express warranty claim during the warranty period. The legal question on whether Plaintiff will be able to recover Song-Beverly damages is foreclosed by the Court’s ruling above.

Motion for Summary Adjudication is GRANTED, as to the 1^st, 2^nd, and 5^th causes of action.

[1]While the Court could sustain the objection for lack of personal knowledge for authenticating the Sales Agreement, Plaintiff Puckett authenticated the sales agreement. (Dec. Puckett, Exh. 1.)